Latest Hood stay shows Texas CCA not adequately vetting capital cases

Rather than authorize investigation into misconduct by a former colleague, the Texas Court of Criminal Appeals instead took one for the team this week, essentially admitting with its execution stay in the Charles Hood murder case that its members flouted recent Supreme Court precedents on jury instructions when they approved Hood's execution last spring.

I fail to see how else their actions can be interpreted. They were willing to let Hood die earlier this year based on the same jury instructions they're now questioning. What changed? If they really made such a mistake, it's only by happenstance that it's not an irreparable one.

The Hood case at times feels almost like an optical illusion by M.C. Escher, with more things wrong with the picture from each new angle one examines.

To recap: Last spring the Court of Criminal Appeals declined to review allegations that trial judge Verla Sue Holland (who later served on the CCA herself with 8 current members) had been sleeping with the prosecutor during Hood's capital murder trial - what one blogger called "extreme ex parte conduct." The CCA denied Hood's last appeals and sent him off to die.

By all rights, Hood's life should have terminated that night. But thanks to delays caused by last-minute appeals to the federal courts, the Department of Criminal Justice said they could not finish the job of killing him by the 12 a.m. deadline, delaying the execution. So with the extra time, Hood's attorneys filed a civil suit seeking damages. This week, a judge finally granted depositions where Judge Holland and her paramour admitted to a long-time, secret affair in the late '80s and early '90s.

On the same day the judge and prosecutor admitted their misconduct, the Court of Criminal Appeals granted Hood a stay, but based on a separate issue about jury instructions, not the just-proven affair involving their former colleague. The blog Crime and Consequences gives this account of their reasons for the stay:

The decision of the Texas Court of Criminal Appeals is here. The court denies the affair-based claim, along with a nonsense double jeopardy claim, on the ground that "they do not meet the requirements of Article 11.071, § 5, for the consideration of subsequent claims." In Texas, as in most jurisdictions, there is an appeal, one collateral review, and only a narrow window for any further collateral reviews after that.

The court goes on to say, though, "Because of developments in the law regarding nullification instructions, this Court has determined that it would be prudent to reconsider the decision we issued in dismissing applicant’s second subsequent writ application. See Ex parte Hood, 211 S.W.3d 767(Tex. Crim. App. 2007)(No. AP-75,370)."

The primary development is likely the Supreme Court's 2007 decision three months later in Smith v. Texas. As with many old Texas cases, the state is still litigating in Hood the consequences of instructing juries in accordance with a statute the Supreme Court expressly upheld in Jurek v. Texas, 428 U.S. 262 (1976), a practice later found to violate the constitutional requirement the Court fabricated in Lockett v. Ohio, 438 U.S. 586 (1978).

There's only one problem with the Texas court's otherwise reasonable decision to bow to "developments in the law regarding nullification instructions": Those developments took place in 2007, not between the CCA's last review of Hood's case (June 2008) and now!

So why didn't the CCA stay the execution back then and demand the jury instructions be revisited? By staying the execution on these grounds after earlier having authorized his final execution, isn't the court essentially saying "We were prepared to kill this guy even though his jury instructions were unconstitutional?" How else can this be interpreted?

I can think of only two possible explanations for this odd and surprising move by the court: Either the CCA egregiously erred last spring by failing to accommodate Smith v. Texas, or else the court is now using this issue as a stratagem, the way an illusionist uses misdirection, to avoid revisiting their colleague's admitted misconduct. Neither reason reflects well on the court.

However one interprets it, the Charles Hood stay was an extraordinary ruling. I've heard defense lawyers and abolitionists frequently complain that under Presiding Judge Sharon Keller, the CCA allows executions without addressing major, legitimate constitutional claims. Now the CCA is basically admitting it sent someone to the death chamber with a constitutionally deficient case. I'm frankly somewhat stunned at the implications.

UPDATE: See a related editorial from the Austin Statesman.